Court File and Parties

Ontario Court of Justice

Date: December 22, 2016

Court File No.: Toronto

Between:

Her Majesty the Queen

— and —

Jesse Warfield

Before: Justice S.R. Shamai

Reasons for Judgment released on: December 22, 2016

Counsel:

• Ms. S. DeFilippis, for the Crown
• Mr. D. Kirby, for the defendant Jesse Warfield

SHAMAI J.:

INTRODUCTION

[1] As some sports fans may recall, the Leafs lost an exhibition game to the Sabres on September 28, 2014. More memorably, in the case of the key witnesses and the defendant on the matter before me, Shawn Cookson and his friend Aaron Knight went to Gabby's on King Street West in Toronto, after watching the game from a corporate box. The night ended badly, with Mr. Cookson being dragged out to the street after an altercation with a bartender, the defendant Jesse Warfield. Mr. Warfield pleads self-defence to the charge of assault causing bodily harm, before this court for trial. He acknowledges that Mr. Cookson's injuries, should he be found responsible in the sense of the criminal law for them, amount to bodily harm, but that he acted in self-defence, and ought to be acquitted by this court.

PERTINENT LEGISLATIVE PROVISIONS

[2] The doctrine of self-defence is provided by statute in Section 34 of the Criminal Code. That section was overhauled in 2013 to bring clarity, uniformity and a comprehensive approach to the several precursor sections. The section provides for the defence as follows:

34 (1) A person is not guilty of an offence if

(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and

(c) the act committed is reasonable in the circumstances

34 (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;

(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(c) the person's role in the incident;

(d) whether any party to the incident used or threatened to use a weapon;

(e) the size, age, gender and physical capabilities of the parties to the incident;

(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;

(f.1) any history of interaction or communication between the parties to the incident;

(g) the nature and proportionality of the person's response to the use or threat of force; and

(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

34 (3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.

I will reproduce the other legislative provision which is pleaded in defence at this point as well: Sections 29 and 34 (2) of the Liquor Licence Act of Ontario:

s. 29: No person shall sell or supply liquor or permit liquor to be sold or supplied to any person who is or appears to be intoxicated.

(4) No person shall be in an intoxicated condition

(a) in a place to which the general public is invited or permitted access

s. 34(1) The holder of a licence or permit issued in respect of premises shall ensure that a person does not remain on the premises if the holder has reasonable grounds to believe that the person

(a) is unlawfully on the premises;

(c) is contravening the law on the premises

(2) The holder of a licence or permit may request a person referred to in subsection (1) to leave the premises immediately and if the request is not forthwith complied with may remove the person or cause the person to be removed by the use of no more force than is necessary

THE FACTS

[3] In this case, as alluded to earlier, Mr. Cookson viewed the Leafs hockey game on September 28, 2014, from the box owned by Mr. Cookson's wife's employer. She was there during the game, but did not accompany her husband, his friend Aaron Knight, and another friend to the restaurant bar, Gabby's, after the game. Mr. Cookson and Mr. Knight had worked at Gabby's about fifteen years prior, and Mr. Cookson said they were feeling "nostalgic" in going there. Now 49 years of age, Mr. Cookson is an independent video producer-director, focussed on commercial type of videos, primarily made for web-based viewing. He has no criminal record. He is married and has children, though he had no children at the time.

[4] He testified that he had had six or seven vodka and waters at the game – asked if it was a "free pour" in the box, in the sense that shots were not measured, he stated he did not know; drinks and food were free in the sense they were not paid for by him. He denied being inebriated on arrival at Gabby's. He said someone else paid for the first round, and that he went to the bar to get a next round of beers for himself and Mr. Knight.

[5] At the bar, Mr. Cookson asked for a Guinness and a lager, and a pack of cigarettes. He received all three items. He paid for the drinks on a credit card, but was asked to pay cash for the cigarettes. Finding that he had no cash, he declined the bartender's suggestion that he get cash at the ATM a dozen feet away in the bar. He testified that this part of his dealings at the bar was with an employee other than the defendant. He stated that he may have been annoyed that he could not put the cigarettes on the same bill as the drinks, but was not upset. He testified that his tone did not change from the jocular exchanges with bar staff prior to that; however, when Mr. Warfield became involved, at the behest of the bartender, the tenor of the interaction "went from zero to one hundred". He clarified what he meant by the phrase, saying that he recalled Mr. Warfield being aggressive in his tone of voice, yelling at him to pay for the cigarettes, then escalating the incident by coming around the bar from the serving area, facing him and suddenly "jumping" him. He stated that he kept his cool throughout, and did not become aggressive or yell or insult the man in any way.

[6] At first blush the video, which had no audio component, confirmed his testimony: at the bar, Mr. Cookson appeared first in the service area, then around at a bar stool, receiving the two beers, conversing with others at the bar, gesturing in his interactions but not apparently aggressive. The interaction with Mr. Warfield, again on first viewing, showed a dramatic change, from the point initially where he appeared to be in a somewhat protracted but smiling exchange with Cookson from behind the bar, then coming around the bar and suddenly jumping on Cookson, taking him violently to the ground and dragging him out of the bar.

[7] Mr. Cookson testified to his injuries: scrapes, cuts and bruises on his head, which he described as "road rash"; and a fractured nose. He did not take any treatment for his nose, given the cost of it. He described some trouble he has with his nose to this day. He stated that he has had trouble with his back since that time, and that he developed cluster headaches about eight months later, though he fairly stated that he could not link them to the incident, as a matter of medical fact. He did refer to having suffered a severe concussion as a result of the incident. No medical evidence was tendered in support of Mr. Cookson's description of his injuries, although as noted, defence conceded that the "bodily harm" component of the Crown's case was made out. Confirmatory evidence as to Mr. Cookson's frame of mind, given the conflicts in the evidence after the assault, was not available to the Court.

[8] The whole of the evidence and a careful review of the video clips discloses a very different meaning to the images on the screen, from that which immediately commends itself, on the images and Mr. Cookson's testimony in-chief. In cross-examination, the review of the video permitted Mr. Cookson to reflect that his memory of events was incomplete, in terms of his earlier testimony. He said that, on viewing the video footage of the bar, he recalled the altercation escalating when he was denied service after paying for the beers. He did not recall an argument about being required to pay cash for the cigarettes. He did recall leaving a "zero tip" given his displeasure. He did recall Mr. Warfield, whom he knew not at all, apologising for the poor service Mr. Cookson complained of. He also recalled that once Warfield came around the bar, he found himself, with no warning he could recall, in a headlock which had such force that he fell to the ground. He described Warfield as "riding him out". He said his last memory was possibly falling onto a step. The video showed him indeed falling towards the steps to a raised booth in the bar. He stated that he had some recollection of being dragged out the front door, then being "semi-conscious", wondering what had just happened as he lay on the sidewalk. He recalled Warfield reaching into his pocket and removing his wallet. By this time, as reminded by the video, he was on his feet: he recalled the wallet being returned to him by someone there, who picked it up from the sidewalk. It is fair to say that Mr. Cookson acknowledged that the video showed a different narrative than he recalled, in terms of his conduct prior to Warfield coming around from behind the bar. In fact he seemed a little surprised: a little sheepish at the querulous conduct he had admittedly engaged in. The conclusion I drew, after hearing all the evidence, was that although I don't doubt Mr. Cookson's goodwill in giving his evidence, his memory was significantly affected by the amount of alcohol he consumed. He was clearly intoxicated and troublesome, not the pleasant and direct man he appeared to be in the witness box.

[9] Video footage of the bar was extensively referred to in examination and cross-examination. The recordings in the security system provided several perspectives on the bar, and on the patio by the road outside the premises. As mentioned, there was no accompanying sound recording. Being asked to comment on a view of himself at the bar and through the time he was removed from the bar to the street, Mr. Cookson was moved to acknowledge that his memory of his interaction with Mr. Warfield was more limited than what he acknowledged the video to show.

[10] Mr. Cookson's companion testified as well. Mr. Knight came into the bar from the patio to use the washroom, just as his friend was being taken down by Mr. Warfield. He did not recall his friend as having been excessively intoxicated that night, nor in a belligerent mood. He could not attest to his friend's alcohol consumption except to confirm that he had been drinking. He said that when he saw his friend with Mr. Warfield on him, initially he noted that Warfield had him in a headlock, and that he appeared to be applying a fair amount of pressure. He noted his friend's face appeared very red. He was concerned that his friend was unconscious and therefore vulnerable to injury. He protested the employees dragging his friend out, saying that as he appeared to be limp and unconscious, they would hurt him that way. He did say that he was moved aside by bar employees when he tried to intervene to help his friend. He believed that his friend was unconscious when he was being dragged out, until outside the bar, when his friend sat up in a sort of daze. He described Mr. Warfield, at that point he saw him in the bar, as "in a red zone" – "in a zone of anger, unreachable to reason, just preoccupied at the time".

[11] Before describing Mr. Warfield's testimony I will briefly refer to the testimony of Dmitry Rouzivend, an employee of Gabby's at the time. He was having a drink at the bar after his shift, and ultimately was close to the incident with Mr. Cookson on the ground, assisting in carrying him from the bar. He was not cross-examined. He testified to the loud, aggressive and threatening tone which Mr. Cookson displayed at the bar, drawing the attention not only of himself but patrons at the bar. He became alert to the safety of others at the bar when he heard the escalating tenor of the interaction. He said he was a few seats away, so could not hear the words said between Mr. Warfield and Mr. Cookson, but noted that Mr. Cookson appeared displeased, though Mr. Warfield appeared to be acting in a conciliatory manner. He described the latter as calm, not shaken up. The demeanour of Cookson was such that a patron, seated between himself and Cookson, told Cookson to "stop being an idiot, if the barkeep tells you to leave, you know you gotta go". Mr. Rouzivend tried to put a hand on his shoulder to ease the situation by pointing out the ATM, but said he was brushed off. He watched as the situation escalated, feeling something was imminent "of a physical nature". He pulled the chair back from behind Cookson, so he could step back without tripping. He said he then saw Warfield grab Cookson, but that as there was a step right there, they fell.

[12] He described speaking with Cookson on the sidewalk outside the restaurant. He said he was being aggressive and a little intimidating, even at that point.

[13] Mr. Warfield testified. He is now 29 years of age. He is not an employee of the restaurant nor was he at the time: his family owns the business. Mr. Warfield described the business as one which started twenty-six years ago, and has now grown, to include twelve Gabby's restaurants, and "five brands" which I understand to be other food retail outlets. He has a Master's degree in environmental sustainability, which permitted him to examine the supply chain in beer production. He now works full time as operations manager for the family business. He stated that he does not normally work as a bartender, but is "smart serve certified" and was filling in as a bar manager on the night in question due to some emergency in staffing. Despite his training and experience in that capacity, he stated that he had no training in proper methods for removing an intoxicated or troublesome patron from the premises.

[14] He was examined in minute detail on the video reflecting events at the bar and on the sidewalk that evening. He testified to working in a managerial capacity that night on a last-minute basis. He was not close to Cookson initially, and only peripherally aware of him at first. He became aware of some sort of dispute arising between the other manager, Jason, and Cookson, regarding cigarettes. He became aware Cookson wanted to pay for drinks and smokes by credit card, and this was not permissible. Eventually Warfield took the "billfold" – the folder containing the signed credit card slip – and noted that Cookson had left no tip. This did not affect him directly, but apparently it had been the subject of an apparently jocular exchange between Cookson and the patron beside him. However, the cigarettes had still not been paid, and Warfield broached the subject with him. Though he was smiling, Cookson began yelling. This drew the attention of other patrons. All this could be observed on the video. Warfield recalled that Cookson was complaining about the service, and in particular used the term "shithole". Warfield took a deferential posture, still smiling, though by now the boisterous loud conduct of Cookson was drawing the attention of patrons and employees. Dmitry Rouzivend was among the people sitting at the bar: though an employee of the bar at the time, he had finished his shift and was sitting at the bar at the time. Meanwhile, Cookson escalated his complaint, saying that he had never received the cigarettes, while he sipped the beer. He throws the bill on the bar, challenges Warfield, saying, what are you going to do about it. Warfield continues to smile as he considers the situation. Cookson's challenge escalates again, using these words: "what the fuck you gonna do about it". Warfield decides the man was intoxicated; "It went off in my mind, he's had far too much to drink" and reaches to take the beer. Within seconds, Cookson taps emphatically on the bar, as he takes one of the beers in his hand. He issues this threat, to Warfield's way of thinking: "come and get it". Warfield says he was about to tell Cookson he was cut off, but as he reached for the second beer, Cookson got it first, with his right hand. While Cookson gestured to Warfield to come get the beer, Warfield told him that he was cut off, as he had had too much to drink, that he had to leave, and that he was disturbing everyone around him. Although Warfield was still smiling, Cookson had become loud and aggressive: this is Warfield's recollection, and the gestures on video support this. The defendant testified that he was getting nervous, as he'd had to cut people off before at the bar, but never had to physically get them out, and had no training or experience. He continues to try with words, he testified that at that point he was begging Cookson to "just leave, take the cigarettes even without paying, just leave". The threat is re-iterated and escalated: Cookson tells him, "if you want the beer you'll have to come get it, if you want me to leave you'll have to make me leave physically". Warfield goes around the bar to confront the patron. He says, "you're outta here". The ultimate threat issues: "you can try but if you do I'll fucking kill you".

[15] Warfield testified that he didn't know what to do so he grabbed him. He stated that he did not want to be trapped beneath Cookson, but did not know what to expect given the preceding. He testified that after grabbing Cookson, he tried to brace their fall, extending his left arm, but that they crashed into the staircase. He said that he did not choke him, just grabbed him. At this point, Cookson's friend Knight enters into the fray, as depicted in the video evidence.

[16] Warfield testified that he attempted to pick up Cookson and take him off the premises. He describes other employees as helping him to remove him from the bar and "place him down" on the sidewalk. He described his action in removing Cookson's wallet from his pocket as an effort to ensure that he had the wherewithal to take a cab home. He described his own state of mind from the time he tackled Cookson as wishing to ensure that he did not get up and fight him. He could not say whether Cookson had lost consciousness; he described the "timing" of Cookson's regaining consciousness, when he removed his wallet from his pocket, as very odd. He stated that after the efforts to convince Cookson to leave after cutting him off, he feared that after the threat to kill him, any further effort by him to escort him out, as, for example guiding him out, would be met by serious assault possibly intended to kill him.

[17] In the result, I find that Mr. Warfield's account of what happened is largely believable. Cookson clearly had a very inadequate recollection of what had occurred. He appeared to me to be a witness who was not intending to deceive the court, and had not viewed the video of proceedings until the day of trial. He appeared a little shaken by the review of the video, as his recollection of events was otherwise. Although he denied the extent of his intoxication, I must find that he was seriously affected by it. He did not recall his abusive conduct at the bar and he certainly did not recall an escalating series of challenges to Warfield, when Warfield cut him off bar service and required him to leave. The video of him being tackled to the ground by Warfield, and apparently dragged, lifeless and face down, to the sidewalk outside, was a shocking image. The context provided by Warfield's testimony and supported in significant particulars by Rouzivend draws a rather different picture. Aaron Knight's testimony is not brought into contention by the balance of the evidence; however given the timing of his arrival inside the bar, his observations are not helpful on the key issues. I am dubious about Mr. Warfield's goodwill in testifying that he could not comment on whether Cookson was unconscious or not, once he had smashed against the stairs, face first. I question his sincerity when he defends removing Cookson by dragging him first by his upper body then by hoisting by the waist of his pants, for a few seconds until he was aided by other employees. I question his good intentions in removing Cookson's wallet once on the sidewalk and throwing it toward the street. However, even with these caveats, I accept sufficient of Warfield's testimony, within the framework set up for analysis of a defendant's testimony in a criminal case by the W.D. decision, to find that the groundwork is set for the self-defence he pleads in this case. Warfield was sober and responsible; he had not only the ordinary responsibilities of a barman but as well the added interest in his own family business, promoting good relations with customers, and a well-run establishment. He projected an amicable, conciliatory attitude for the majority of what was doubtless a trying interaction with a patron whose intoxicated state led rapidly to a decision to cut him off service. Most confounding however was being confronted with a series of escalating threats to his own well-being. Whether there was an objective basis to believe that Cookson would indeed kill him is not the issue. There was sufficient in my view for Warfield to believe that further ill would befall him and his patrons and employees in the bar.

THE LAW

[18] The law on self-defence was amended in 2013. I have been referred to a number of decisions applying that streamlined law, which condensed the previous sections (34-42) to just two sections. I have reproduced the section above. R. v. Power is a decision of the Saskatchewan Queen's Bench [2014] S.J. No. 640, sitting in appeal from a trial decision where self-defence was argued and ultimately not accepted as a defence. It provides an interesting summary of the transition from the previous law, and provides helpful application of some of the preceding jurisprudence, prior to the amendment. The Court refers to a decision of the Saskatchewan Court of Queen's Bench (R. v. J.K.M.C. (1966), 53 WWR 293) which appears to have first coined the measure to be applied in a plea of self-defence: that the defender may fail to measure with nicety the degree of force necessary to ward off the attack and inflicts serious injury. The more frequently cited source for that test is the case of Baxter, in our Court of Appeal (1975), 27 CCC(2d) 96:

…An accused's belief that he was in imminent danger from an attacker may be reasonable, although he may be mistaken in his belief. Moreover, in deciding whether the force used by the accused was more than was necessary in self defence under both s. 34(1) and (2) the jury must bear in mind that a person defending himself against an attack, reasonably apprehended cannot be expected to weight to a nicety, the exact measure of necessary defensive action…(p111)

[19] Justice Elson in the Power decision goes further in paragraphs 58 to 60, review the approval by the Supreme Court of Canada of the dissenting opinion of Wittman JA, of the Alberta Court of Appeal, in the case of R. v. Kong (2005 ABCA 255, rev'd 2006 SCC 40). The pertinent passage is as follows:

"In deciding whether the appellant's use of force was reasonable, the jury is to look to the circumstances to consider what a reasonable person in the accused's situation might do given the threatening attack and the force necessary to defend himself against that apprehended attack… The objective measure of proportionate force in self-defence cases requires a tolerant approach"

[20] By its amendments in 2013, Parliament has legislated the circumstances to be considered in determining whether an act pleaded in self-defence is reasonable. The list, reproduced above, includes, but is not limited to, the factors set out in Subsection (2).

[21] The more recent decision of R. v. Comer 2015 ONCJ 133, which my colleague Justice Bourque dealt with, gives a helpful example of the application of the amended law. Similarly, the case of Fensom, a trial decision of Quigley J. in the Superior Court of Ontario [2016] O.J. No. 650, shows application of law to fact. Both these cases are noteworthy as they, like Mr. Warfield's case, show situations which at first blush showed infliction of serious bodily harm by the defendant upon a complainant, but which, with a more careful examination of all the evidence, show circumstances which require the successful application of Criminal Code Section 34, the self-defence provision.

ANALYSIS AND CONCLUSIONS

[22] A review of the criteria and the cases do not, ultimately, show proof beyond reasonable doubt of the defendant's guilt. I questioned initially whether the depiction on video could possibly not have been an overreaction, to a serious degree. I questioned further, upon understanding the context a little better, whether Warfield's actions in apparently dragging Cookson out of the bar for a few feet until other helped him hoist Cookson off the ground to remove him, might constitute a further assault. Once again, there is insufficient in the Crown's case to support such a finding. Mr. Warfield, it must be remembered, was entitled to "remove the person or cause the person to be removed by the use of no more force than is necessary" if a request to leave licensed premises under the act is "not forthwith complied with". (Liquor Licence Act, RSO 1990 c. L. 19 section 34 (2)). The evidence is far from demonstrative of the proposition that in all the circumstances, Mr. Warfield applied excessive force in removing Mr. Cookson in the manner he did. One might expect that someone in Mr. Warfield's position, whether a member of management filling in on the floor or a fulltime bar employee, would be better trained in the safety issues relating to intoxicated patrons. One might expect that someone in Mr. Warfield's position would show a little more respect and care for the well-being of another human being, apparently unconscious as Mr. Cookson appeared to be. Tossing his wallet toward the gutter hardly becomes the defendant. But none of this affects my assessment that in fact his actions were justified both as defined by Section 34 of the Criminal Code, in all the circumstances, and by Section 34(2) of the Liquor Licence Act.

[23] In reviewing the provisions of Section 34 of the Criminal Code, I find that Mr. Warfield believed on reasonable grounds that a threat of force was being made against him, when Mr. Cookson's belligerent and boisterous attitude escalated from "come and get it", to tapping on the bar and saying, among other things, "if you want me to leave you'll have to physically make me leave"; to "you can try [to get me to leave] but if you do I'll fucking kill you". I take into account Warfield's conciliatory attitude through the series of offensive words and gestures, as well as his lack of training and experience in physically removing a person from the licenced premises. I speculate whether some less violent means of both defending himself and removing Cookson from the premises might have been available in the circumstances, but I am guided by Mr. Warfield's responses to those questions, and the surrounding conditions. His responses were not unreasonable, and I accept that Mr. Warfield sincerely feared for his safety, viewing his options as narrow and urgently requiring action. The test, the jurisprudence tells me, is not purely an objective test: I speculate further, whether with proper training in ejecting an individual from the bar, Mr. Warfield might not have found a less harmful way of removing Cookson from the bar. I find that his action was not intended to have the effect that it did, with Mr. Cookson hitting his face on the steps and possibly losing consciousness for a few minutes. I consider as well that Mr. Cookson had been entirely unco-operative, likely due to his intoxication with requests made numerous times that he leave the premises as a result of his intoxication. His lack of co-operation escalated to a series of threats which in combination with the barkeeper's obligations under the Liquor Licence Act made Warfield's actions understandable. I find that the act alleged as the assault causing bodily harm was committed for the purposes of defending himself from the threatened force.

[24] I accept that the force used was not intended to cause the damage that it did, but I accept also that Warfield attempted to break the fall of the two men, by extending his arm. I accept that he was alarmed in applying force, and was not, as the cases say, able to measure the force used to a nicety. It may well be that other means may have been available, such as enlisting the assistance of the several other barmen in the immediate vicinity, but again, I view the run-up to the assault and the lack of skill and experience of Warfield as factors balancing the impact of the act itself. Much was made of the difference in size between the two men: I must say that with Warfield being 27 and 5'11", 195, and Cookson being 47, 6'1" and 210 pounds, I assess their likely capacities as roughly equivalent. The difference in age and physical stature is not an issue in measuring whether Warfield's act was appropriate by way of self-defence. I do not view the other factors in Subsection 34(2) as relevant to the situation before the Court. Subsection (3) awkwardly drafted as it is, does not apply to this situation.

[25] I must conclude that the assault committed by Mr. Warfield on Mr. Cookson is exonerated by the application of the doctrine of self-defence, as enacted by Section 34 of the Criminal Code. In fact Section 34(2) of the Liquor Licence Act obliged Mr. Warfield to ensure that Mr. Cookson did not remain on the premises. After his repeated requests and entreaties were ignored and in fact defied, Mr. Warfield was entitled to use "no more force than is necessary" to remove him. Like the analysis of the self-defence provision, the measure of necessary force cannot be calculated to a nicety. Not a pretty sight, given the unintended consequences, and most unfortunate for Mr. Cookson. In assessing the criminal charge on the facts and the law, I conclude that the Crown has not proved the charge beyond reasonable doubt, and I am dismissing the charge.

Released: December 22, 2016

Signed: "Justice S.R. Shamai"